New Mexico Statutes
Article 4 - Tort Claims
Section 41-4-5 - Liability; operation or maintenance of motor vehicles, aircraft and watercraft.

The immunity granted pursuant to Subsection A of Section 41-4-4 NMSA 1978 does not apply to liability for damages resulting from bodily injury, wrongful death or property damage caused by the negligence of public employees while acting within the scope of their duties in the operation or maintenance of any motor vehicle, aircraft or watercraft.
History: 1953 Comp., § 5-14-5, enacted by Laws 1976, ch. 58, § 5; 1977, ch. 386, § 4.
Emergency clauses. — Laws 1977, ch. 386, § 23 contained an emergency clause and was approved April 8, 1977.
Immunity not waived. — Where the decedent was experiencing the effect of withdrawal from heroin when the metropolitan court ordered his release; the decedent was initially released to be transported by van as required by jail policy, but he exited the van; the decedent re-entered the metropolitan jail; the decedent was released to the jail parking lot without signing a waiver of van transportation contrary to jail policy; the decedent wandered off into the desert and died of hypothermia; and the medical director of the jail opined that at the time of his release, the decedent had no medical condition that required treatment, the city was not liable under the Tort Claims Act [41-4-1 through 41-4-27 NMSA 1978] on plaintiff's claim that the van driver negligently operated the van. Lessen v. City of Albuquerque, 2008-NMCA-085, 144 N.M. 314, 187 P.3d 179, cert. denied, 2008-NMCERT-005, 144 N.M. 331, 187 P.3d 677.
Immunity not waived where negligence did not result in enumerated tort or where law enforcement officer did not breach a statutory duty. — Where plaintiff was traveling on a highway in Bloomfield, New Mexico when her vehicle struck an intoxicated pedestrian, and where plaintiff brought suit against defendants alleging negligence based on the fact that a San Juan County deputy left the pedestrian near the highway after taking the pedestrian into custody due to the pedestrian's intoxication, the district court did not err in dismissing plaintiff's tort claim based on its determination that defendant's immunity was not waived because the negligence of the officer did not result in one of the enumerated torts listed in this section, and the deputy's conduct did not breach a statutory duty owed to plaintiff. Milliron v. County of San Juan, 2016-NMCA-096.
"Maintenance of motor vehicles" construed. — The "maintenance of motor vehicles" connotes the act of keeping them safe for public use. Certainly, burning of automobiles is inconsistent with this concept. McCurry v. City of Farmington, 1982-NMCA-055, 97 N.M. 728, 643 P.2d 292.
In a wrongful death suit, the actions of a state police emergency response officer, in supervising the removal of a privately owned trailer from a highway in a condition that eventually caused the death of plaintiff's decedent, were not within the meaning of "maintenance" or "operation" as those terms are used in this section and, accordingly, immunity was not waived. Caillouette v. Hercules, Inc., 1992-NMCA-008, 113 N.M. 492, 827 P.2d 1306, cert. denied, 113 N.M. 352, 826 P.2d 573.
Operation of school bus. — Neither the adoption and enforcement of regulations to govern the design and operation of school buses, nor the design, planning and enforcement of safety rules for school bus transportation, fall within the meaning of "operation" of a motor vehicle, for purposes of this section. Chee Owens v. Leavitts Freight Serv., Inc., 1987-NMCA-037, 106 N.M. 512, 745 P.2d 1165, cert. denied sub nom. Chee Owens v. Loshbough, 107 N.M. 106, 753 P.2d 352 (1988).
The fact that a school district may be immune from liability for alleged improper design, planning and enforcement of school bus transportation procedures does not mean it is immune if one of its drivers negligently operates a bus. Chee Owens v. Leavitts Freight Serv., Inc., 1987-NMCA-037, 106 N.M. 512, 745 P.2d 1165, cert. denied sub nom. Chee Owens v. Loshbough, 107 N.M. 106, 753 P.2d 352 (1988).
A bus driver, who pulled off the pavement of a highway, across which a child, while attempting to board the bus, ran before being struck by a truck, may have been negligent. Causal connection between the accident and the defendant's action was not resolved and summary judgment in favor of the defendant was improper. Chee Owens v. Leavitts Freight Serv., Inc., 1987-NMCA-037, 106 N.M. 512, 745 P.2d 1165, cert. denied sub nom. Chee Owens v. Loshbough, 107 N.M. 106, 753 P.2d 352 (1988).
Operation of school bus. — Operation of a school bus under this section includes making decisions, while driving the bus, about whether to stop the vehicle on the pavement, with lights flashing, or off the road. Therefore, when a bus driver decided, while driving the bus each day, not to pick up a child on the child's side of a state road, but to pick the child up on the opposite side on the driver's return trip, that decision constituted operation of the bus; it occurred while the driver was in control of the bus, and it affected the manner in which the driver performed his driving duties. Gallegos v. Sch. Dist. of W. Las Vegas, 1993-NMCA-086, 115 N.M. 779, 858 P.2d 867, cert. denied, 115 N.M. 795, 858 P.2d 1274.
Applicability to law enforcement officers. — This section, which waives immunity for negligent operation or maintenance of a motor vehicle, watercraft, or aircraft, applies to all public employees, including law enforcement officers. Section 41-4-12 NMSA 1978, which applies only to law enforcement officers, waives immunity only for the acts enumerated in that provision, such as assault and battery. Wilson v. Grant Cnty., 1994-NMCA-001, 117 N.M. 105, 869 P.2d 293.
Immunity not waived for third-party negligence. — This section does not provide for a waiver of immunity for acts of public employees that cause or allow third parties to negligently operate motor vehicle resulting in injuries. Blea v. City of Espanola, 1994-NMCA-008, 117 N.M. 217, 870 P.2d 755, cert. denied, 117 N.M. 328, 871 P.2d 984.
Law reviews. — For article, "Constitutional Torts and the New Mexico Torts Claims Act," see 13 N.M.L. Rev. 1 (1983).
For note, "Liability of Law Enforcement Officers While in the Line of Duty: Wilson v. Grant County," see 25 N.M.L. Rev. 329 (1995).
Am. Jur. 2d, A.L.R. and C.J.S. references. — 57 Am. Jur. 2d Municipal, County, School, and State Tort Liability §§ 236, 577.
Responsibility of public officer for negligence of subordinate in operation of vehicle, 3 A.L.R. 149.
Criminal or penal responsibility of public officer or employee for violating speed regulation, 9 A.L.R. 367.
Personal liability of public official for personal injury on highway, 40 A.L.R. 39, 57 A.L.R. 1037.
"Motor vehicle" or the like within statute waiving governmental immunity as to operation of such vehicle, 77 A.L.R.2d 945.
Nonuse of automobile seatbelts as evidence of comparative negligence, 95 A.L.R.3d 239.
Liability for civilian skydiver's or parachutist's injury or death, 95 A.L.R.3d 1280.
Municipal or state liability for injuries resulting from police roadblocks or commandeering of private vehicles, 19 A.L.R.4th 937.
Tort liability of public schools and institutions of higher learning for accidents associated with transportation of students, 23 A.L.R.5th 1.
Comparative negligence of driver as defense to enhanced injury, crashworthiness, or second collision claim, 69 A.L.R.5th 625.
Admiralty jurisdiction: maritime nature of tort - modern cases, 80 A.L.R. Fed. 105.
60 C.J.S. Motor Vehicles § 14; 60A C.J.S. Motor Vehicles § 428.